This is a blog about the future of digital media law from Laurence Kaye. Laurence runs Laurence Kaye Consulting Limited (click here), bringing insight an clarity to the complexities of the digital world.

The Court looked at whether clients of media monitoring agency would need a licence to view a media monitoring report on screen. If they downloaded it to their machines or or printed it they clearly would. But, said the Court, simply viewing a web page was just like reading a book and it's never been an infringement to view or read a copy of an infringing copy in physical form.

Of course, a service provider like a media monitoring agency would need a licence to make press cuttings available online for its end-users. But if the growth of 'cloud-based' services renders redundant the notion of download, the end user's "consumption" of a work by its temporary display on screen will form an economically significant part of the service which, unless the European Court of Justice is in disagreement, will not require a licence.

True, even if the end user doesn't need a licence merely to view on screen, the content owner could still seek argue in its negotiations with the service provider (SP) that there's value to the SP in being able to make the work available to its end users, including on-screen use, and so the licence charged to the SP should reflect that. But you can see the counter argument.

The Supreme Court decided that article 5.1 of the Copyright Directive "...extends in principle to temporary copies made forthe purpose of browsing by an unlicensed end-user." So this is a really important issue, and hence the Supreme Court's decision to refer the matter to the European Court, which has already looked at this point in (Case C-5/08) Infopaq International A/S v. Danske Dagblades Forening (“Infopaq I”) [2010], (Case C-403/08) Football Association Premier League Ltd v QC Leisure and Others and (Case C-429/08) Karen Murphy v Media Protection Services Ltd (“Premier League”) [2012] 1 CMLR 769; and (Case C-302/10) Infopaq International A/S v. Danske Dagblades Forening (“Infopaq II”), 17 January 2012.

In thinking about the outcome of that referral, I'd like to add a couple of comments, including some personal recollections. I took part in the negotiations of the Copyright Directive - 2001/29/EC. In particular, I recall a meeting between representatives of the large Telcos on the one hand and rights holders on the other some time around 1999 or 2000. The focus was Article 5.1 of the Directive, the one on which the Supreme Court focused in this case. It was like two nations each struggling to understand the other's language. The Telcos were concerned about being sued for copyright infringement because technical, temporary copies of works being carried on their networks were being made in their routers and server caches.

It was these these types of technical, temporary copies without independent economic significance which were the focus of Article 5.1 of the Directive. It carves out of the reproduction right "temporary acts of reproduction which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary; or (b) a lawful use."

As I recall, the majority of the discussions around Article 5.1 concerned these kinds of temporary copies made by the Telcos' networks and machines. True, the reference to "lawful use" pointed to other, "off the network" technical, temporary copies such as cached copies in a computer's memory which were incidental to some other "lawful use" e.g. prior to a download. But this was not the central point and the notion of "lawful use" was seen in the context of technical copies which happened in the course of some other licensed activity.

True, the Supreme Court has said that European case law has interpreted "lawful use" more widely. Effectively, the Court said that if someone does not need a licence to view a work on screen, then technical copies made the user's machine are "lawful". The Court said that "..the far broader meaning given by the Court of Justice...to the concept of "lawful use" makes it impossible to confine the scope of the exception to the internal plumbing of the internet. Once it it accepted that article 5.1 extends in principle to temporary copies made for the purpose of browsing by an unlicensed end-users, much of teh argument which the courts below accepted unravels."

Getting the ambit of the exemption in Article 5.1 is of fundamental concern for everyone in the digital value chain. It should also be remembered that the debates around Article 5.1 should be seen in the context of the exemptions from liability for 'mere conduite', 'caching' and 'hosting' in the E-Commerce Directive which was going through the legislative process at the same time.

The issues here are complex and what's important is that we 'look through' the technology to get a uniformly agreed and accepted view of preciselly what "lawful use" means in the world of digital copyright. We must get the balance right. Clearly, no-one seeks to turn internet users into copyright infringers. Equally, it's important that there isn't a legal hole in digital content services.

April 13, 2013

I owe you an apology for my radio silence. But, along with my colleagues Mailin and Sherif, I've been busy with my own 'digital shift', following my firm's amalgamation at the beginning of the month with national law firm Shoosmiths where we've established a publishing and digital media team. Details here. I'm pleased to say it's going really well and our new collegues have been tremendously supporting and welcoming.

The 'digital shift' doesn't stand still. In just a couple of weeks, we've had some important US Court decisions on the scope of the US 'first sale' doctrine (Kirtsaeng v. John Wiley & Sons & Capitol Records v. ReDigi), more of which in another post. We also about to see the details on the European Commission's settlement deal with Google following its investigation into its search business.

Tomorrow, I'll be at the 'Digital Minds' conference and on Tuesday I'll be at the London Book Fair where digital is, of course, high on the agenda. As well as looking around and catching up with all you 'movers and shakers', I'll be running a seminar on Tuesday April 16th at 10 am with Neil Blair of The Blair Partnership and Pottermore and Eric Huang of Penguin on the theme of "21st century publishing - multi-platform, IP-centric" (details here) and at 2:30pm that day I'm a panel member on "What should authors, agents and rights' professionals know when making deals with film and television companies in the brave new digital world?" (details here).

So I hope to see some of you at one of these events.

Anyway, as a result of time passing, I didn't quite get to the end of my 10 themes of the 'digital shift'. As a refresher, you can find a list of them, together with the first 7 themes, here. So I thought it was time to complete the list. I'll keep it brief and just focus on the big picture.

T8: It’s a mobile economy

The continuing growth in mobile devices – tablets and smartphones in particular – means that mobile commerce and mobile advertising will be an increasingly important part of the digital economy’s landscape and in which it will be vital to create the right advertising products and business models for mobile.

T9: Everyone’s in the technology business

I remember a meeting some time in 2000 - (remember Y2K and how the world's IT infrastructure was going to collapse on the chime of Big Ben at 00:00?) - between the representatives of the ISP industry and and the creative industries discussing the Copyright Directive. The topic under discussion was the copyright exception that the ISP's wanted to ensure that copies of copyright works cached on their servers could not be treated as acts of reproduction needing the copyright owner's permission.

The meeting was a great example of how the worlds of intellectual property and technology lacked a shared vocabulary and vision. That's changing. Slowly. But the drive to collaboration and sharing through machine to machine communications and API's is relentlessly driving the two together.

The media, entertainment and information industries are now all in the technology business, including learning to borrow programme and content development techniques like 'agile' from the software industry.

T10: It’s a borderless world

This is our number one challenge. National laws, but A global medium. We see this every day. How do we create an effective regulatory framework for the press in the UK when Blogs publish the same content overseas? How does a digital platform based in country A set its standards for data protection compliance when it targets consumers on an international basis with EU and non EU laws often setting different requirements for compliance for user consent?

The answer, of course, is a slow but inexorable move towards harmonised standards of 'hard law' (e.g. through a forthcoming revision to EU's data protection legal framework) and 'soft law' in the forms of voluntary codes of practice and an increasingly international outlook of the Courts.